457,380,459,302 r/w. 34 and 398 I.P.C

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 03.12.2009

CORAM

THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM
AND
THE HONOURABLE MR.JUSTICE V. PERIYA KARUPPIAH


CRIMINAL APPEAL NO.572 OF 2008



Suryamoorthy ..  Appellant

Vs.

State rep. by
Inspector of Police
Chithode Police Station
Erode ..  Respondent


This criminal appeal is preferred under Section 374(2) Cr.P.C against the judgment of the learned Additional Sessions Judge, Fast Track Court No.I, Erode in S.C.No.69 of 2005 dated 26.02.2008.

For Appellant     :  Mr.E.J.Ayyappan

For Respondent :  Mr.Babu Muthu Meeran, APP

- - - -



JUDGMENT

(The judgment of the Court was made by V.PERIYA KARUPPIAH, J.)

This appeal is directed against the judgment of conviction under Sections 457,380,459,302 r/w. 34 and 398 I.P.C. and the sentence passed thereon  to under go 5 years rigorous imprisonment u/s. 457 I.P.C; 5 years rigorous imprisonment u/s. 380 I.P.C; to undergo 7 years rigorous imprisonment u/s. 459 I.P.C and to undergo life imprisonment u/s. 302 r/w. 34 I.P.C and to undergo 7 years rigorous imprisonment 398 I.P.C., against the accused, by the lower court.

2. The brief facts which are necessary for the disposal of the appeal would be as follows:
(a) On 27.08.2003, at about 01.00 a.m appellant/accused along with co-accused Athi @ Arunkumar and the approver Ganapathi had conspired together to break open the lock of the house in Door.No.91 Chithode Rayapalayam Pudur and to commit theft inside the said house and accordingly the co-accused Athi @ Arunkumar  had with the iron rod held in his hand broke open the lock and took away a VCD player with remote control worth about Rs.1350/- and thereafter at about 01.30 a.m they approached the opposite house in Door No.63 Co-operative colony Rayapalayam with the  intention to commit theft and in pursuance the said common object the co-accused Athi @ Arunkumar with the iron rod had attacked on the head, face and body of one Periyammal aged about 55 years who was sleeping in a coir cot in front of the said house and the appellant/accused herein and the approver Ganapathi were present along with the said Athi @ Arunkumar for the commission of the said crime. Since the said Periyammal died due to the attack levelled against her the appellant/accused along with other co-accused and approver covered the body of the deceased and broke open the lock in the backdoor of the house and entered into the house for committing theft as planned by them. They took out the drawer of the table available there in search of things and since they could not see any articles inside they slipped away.
(b) The Inspector of Police Chithode had registered a case on the complaint presented to him by P.W.1 and P.W.2 in Cr.No.341/2003. The investigator had applied to Chief Judicial Magistrate, Erode that one of the accused Ganapathi was willing to confess his guilt in the commission and participation of the offence and had come forward to depose all the details of the occurrence. The investigator had sought for pardoning and recording of his confession in order to treat him as an approver. The claim of the said accused Ganapathy was considered by the learned Chief Judicial Magistrate and the said court was pleased to tender pardon with the condition that the said accused should co-operate with the prosecution in the conduct of the case. Accordingly the said accused Ganapathi was recognised as approver and the charge sheet was filed against the appellant/accused, co-accused Athi @ Arunkumar. The jurisdictional Magistrate took the case on file in P.R.C.No.10/2004 and after observing due formalities he committed the case to the Principal Sessions Judge, Erode and the said case was taken on file in S.C.No.69/2005 and it was made over to Fast Track Court No.I, Erode for disposal.
(c) The trial court had framed necessary charges against both the accused. Co-accused Athi @ Arunkumar did not turn up for trial  and upsconded himself and therefore N.B.W was issued and the same could not be executed. Therefore the learned Principal Sessions Judge, Erode had passed an order splitting the case against the co-accused Athi @ Arunkumar on 05.09.2007 and assigned a separate number in  S.C.No.95/2007. Accordingly the trial court proceeded with the trial only against the appellant/accused.
3. The prosecution had examined 28 witnesses and had produced 44 documents and 29 material objects in order to substantiate its case.
4. The case of the prosecution as spoken by its witnesses would be as follows:
(a) P.W.3, P.W.4 are the daughters of the deceased Periyammal. P.W.1 and P.W.2 are the son in laws of the deceased Periyammal. The said Periyammal was living with P.W.4 at the house of P.W.1 situated at Chithode, Rayapalayam Pudur Co-operative colony. P.W.3 who is one of the daughters of Periyammal was living in Vallipurapalayam. P.W.1 who is the husband of P.W.4 had taken the house on lease in Door No.63 co-operative colony Rayapalayam Pudur where the occurrence had taken place. P.W.1 and P.W.4 were living opposite to the said house in Door No.56. The house in Door No.63 co-operative colony which was also taken on lease by P.W.1, for his business from P.W.6 lease in the month of February 2003 and he was conducting  cloth shop in the said premises and thereafter he had used it as a godown for his cloth business.

(b) On 26.08.2003, at about 10.30 p.m the deceased Periyammal returned from the house of P.W.2 and slept at the front of the said house in Door No.63 co-operative colony Rayapalayam Pudur lying in a coir cot in the portico in the front of the said house. On 27.08.2003, at about 06.30 a.m P.W.1 went to see his mother-in-law who was sleeping at the said house, but he could not see his mother-in-law on the cot but he could see blood stains on the cot as well as on the floor and also on the front door which was in a closed position. When he searched for Periyammal, he could find that the body of Periyammal was found covered with a black cloth with her neck tightened by the said cloth. Her saree was also blood stained and P.W.1 found her dead and immediately he had informed P.W.4 and also his close relatives P.W.2 and P.W.3. He could also see the drawer of the table inside the house was removed and found on the floor. Immediately, on the same day at about 09.30 a.m he took P.W.1 and P.W.2 with him and went to the Chithode Police Station and gave a written complaint to P.W.21 the Sub Inspector. P.W.21 in turn received the complaint and had registered a case in Cr.No.341/2003 u/s. 302,457,511 I.P.C.

(c) The same was intimated to the investigating officer P.W.27 and he received the F.I.R at 10.30 a.m and inspected the scene of occurrence by 11.00 a.m. He had also prepared Observation Mahazar Ex.P.3 and Rough Sketch Ex.P.41 in the presence of witnesses. The investigator had also collected blood stained cloth and sample earth blood stained cement mud and sample cement mud and blood stained mosaic floor and sample mosaic floor and pair of rubber cheppal and the coir cot and a sample piece of blood stained thread of the coir and the lock of the back door broken by the culprits and had prepared seizure mahazar in the presence of the witnesses. He had also seized the drawer of the table by 04.30 p.m in a separate mahazar. He had also sent for dog squad and photographer and the photographer had taken photographs and the finger print expert had lifted the finger prints found in the drawer and the sample finger prints of P.W.1 to P.W.4. The investigator had conducted inquest in the presence of panchayatars by 12.00 noon to 03.00 p.m on 27.08.2003 and prepared Ex.P.42 inquest report. Thereafter he has sent a requisition to the Doctor for performing the autopsy in order to know the cause of death of Periyammal. Accordingly P.W.19 had conducted autopsy on 27.08.2003 and he also issued Ex.P.33 Post Mortem Certificate. Doctor has given opinion that the death of Periyammal would have caused due to the injury sustained by her on her head and chest and other multiple injuries shock and haemorrhage sustained by her. It is also opined by the Doctor that the death would have taken place 12 to 14 hours prior to the autopsy.
(d) The investigator had searched for the culprits who committed the crime. In the meanwhile on 19.09.2003, appellant/accused had appeared before the V.A.O at Nallagoundanpalayam (P.W.12) by 04.00 p.m and had given a confession that he, the co-accused and the approver Ganapathi had planned and committed the offence. P.W12 recorded the same and the said statement is Ex.P.8 and he had also drafted a report in the form of a letter Ex.P.12 and handed over the accused with the statement of report to the investigator. The investigator had caused the arrest of the accused on that day itself by 06.15 p.m and examined him and he had also given confession in the presence of the witnesses which contains the confession leading to recovery produced as Ex.P.10. The accused had taken the witnesses and the investigator to his house at Rayapalayam Pudur and he took his blood stained shirt and handed it over to the investigator. The investigator had seized the said shirt in the presence of the witnesses through seizure mahazar. Thereafter, the accused had also identified the co-accused Adhi @ Arunkumar near the Railway colony community centre and the  co-accused was arrested in the presence of witnesses who had also given a confession statement which comprises the confession leading to recovery of the iron rod and his blood stained baniyan which he took away in the presence of the witnesses. The investigator had seized them under the cover of seizure mahazar Ex.P.13. On 20.09.2003, at about 04.00 a.m the accused had taken the investigator to the approver Ganapathi's house and identified him and the investigator had arrested him in the presence of his landlord and his friend Duraisamy and the approver Ganapathi who had also given a confession leading to recovery of the articles stolen by him and accordingly he took the other accused, the witnesses and the investigator to Sengunthapuram S.R. Hall on the north eastern side and there he had identified the blood stained full hand shirt. He further took them to one Madasami P.W.16 by 08.00 a.m on that day and identified the VCD player and the remote control, he had sold to him.  P.W.1 seized the VCD player and remote control in Ex.P.16 the seizure mahazar and the investigator brought all the accused and the material objects seized on the confession of the accused to the police station. P.W.7 and his wife P.W.8 had identified the articles seized and thereafter the investigator sent the accused for remand to judicial custody. (e) After getting permission from the court, he took the finger prints of the accused 1 to 3 and sent them to the finger print expert for comparison with the finger prints lifted from the table drawer at the scene of occurrence. The finger print expert had compared the finger prints of the accused 1 to 3 with all the finger prints lifted from the table drawer Ex.P.34 to Ex.P.38. On 29.09.2003, he caused the material objects sent for chemical examination and obtained the chemical analysis report and serology report Ex.P.30 to Ex.P.32.
(f) Since one of the accused namely Ganapathi submitted a request that he would admit the entire guilty and sought for the tender of pardon and was ready to give his confession statement, the investigator had submitted his request to Chief Judicial Magistrate of Erode and on 06.10.2003, the learned Chief Judicial Magistrate had given usual warning and returned the said accused for reflection and thereafter on the next occasion he had recorded his confession statement and also passed an order of tendering pardon to the accused and turned him as an approver. Thereafter, the investigator had recorded the statement of the approver. The witnesses P.W.7 and P.W.8 gave complaint regarding the theft of VCD player and its remote and it was registered in Cr.No.351/2003 and on that basis the investigator had returned those properties. The investigator had inspected the said place of occurrence and had prepared an Observation Mahazar Ex.P.26 and Rough Sketch Ex.P.27 regarding the said complaint. He collected the Post Mortem Certificate and other reports from finger print expert and scientific reports and had filed the charge sheet.
5. On the incriminating circumstances spoken by the prosecution witness the accused was examined u/s. 313 Cr.P.C for which the accused had flatly denied them as false. He had not elected to examine any defence witness.

6. Heard the learned counsel for the appellant/accused. He would submit in his argument that the lower court had miserably failed to appreciate the evidence adduced before it but had ended in a wrong conviction and sentence against the appellant/accused. He would further submit that there is no direct evidence to implicate the accused in the crime but however the lower court had based its reliance on the extra judicial confession said to have been given before the P.W.12 namely V.A.O and the said extra judicial confession was recorded by him only after the commencement of investigation and that too after a long period.

7. He would further submit in his argument that the alleged motive for commission of the murder of the deceased was for committing theft or robbery but that no such theft was done and therefore there could not be any motive on the part of the appellant for the commission of murder. He would further submit in his argument that the alleged confession said to have been given by the accused were not true and as such the relevant evidence cannot be believed. He would also cite a judgment of this court reported in 1995 2 L.W. (Crl) 513 in between RAJU AND 2 OTHERS vs.STATE REP. BY INSPECTOR OF POLICE to the effect that the extra judicial confession recorded by Village Administrative Officer is not amounting to a confession admissible in evidence. He would also submit in his argument that the lower court had relied upon the evidence of approver which is a weak piece of evidence, since the approver had deposed against the accused in order to escape from his culpability. He would further submit that when the stolen articles were recovered from his possession, the evidence of the approver should not be relied upon to record conviction against the appellant/accused.

8. He would further submit in his argument that the reasons given by the lower court for convicting the accused is not legal. The circumstantial evidence adduced by the prosecution before the lower court is not connecting the accused with the crime and the links of the circumstantial evidence are not continuous but it had several snaps and it cannot be relied upon by the court of law. Circumstantial evidence should be complete to convict the accused. He would also submit that the lower court should have given benefit of doubt to the accused and acquit from the charges framed against him. Therefore he would request the court that the appeal be allowed and thereby the judgment of conviction and sentence passed by the lower court against the appellant/accused be set aside.

9. Learned Additional Public Prosecutor would also submit his points in support of the judgment of the lower court.

10. On paying anxious consideration to the arguments adduced on the either side we have to see whether the judgment of conviction and sentence entered by the lower court has to be set aside for want of evidence.

11. It is true that the prosecution is depending upon circumstantial evidence. No one had seen the occurrence which happened in the midnight. The prosecution is mainly resting its case on extra judicial confession given by the co-accused Athi @ Arunkumar and the confession given by the approver (P.W.10) and the recovery of articles stolen from the premises lying opposite place of occurrence and the recovery of M.O.7 iron rod through the confession leading to recovery obtained from the co-accused Athi @ Arunkumar. The evidence of the approver P.W.10 about his participation in the crime along with co-accused Athi @ Arunkumar and the appellant/accused in committing the robbery and murder is also an important piece of evidence. It is also the case of the prosecution that the finger prints lifted at the scene of occurrence were compared with the finger prints of the accused, P.W.10 the approver and the co-accused Athi @ Arunkumar and therefore the circumstantial evidence have been completely pointing towards all the accused including the approver who had participated in the crime and committed the offence.

12. As regards extra judicial confession given to P.W.12 we could see that the accused had approached him on 19.09.2003 at 04.00 p.m  in the presence of Chinnaraj and the accused had given confession regarding the commission of murder for commission of theft and he had also stated his reason for giving confession is that the relatives of the deceased woman would have killed him if he was available at their hands and therefore, he had surrendered before him and gave confession. Accordingly the said confession statement was recorded by P.W.12 which is produced as Ex.P.8. It is pertinent to note that the said appellant/accused was produced immediately to the police station and before the police the appellant/accused had also given confession. The accused had also given confession leading to recovery of his shirt worn by him at the time of commission of offence in Ex.P.10 and on such confession the police had recovered the blood stained shirt, M.O.21. The said blood stained shirt was recovered through Ex.P.11. Seizure Mahazar.  M.O.21 shirt seized was subjected to chemical examination. The said chemical analysis proved positive and the serology report produced in Ex.P.32 would show that the blood contained in the shirt was classified as group 'B' which tallied with the blood group of the deceased woman. Therefore the argument of the appellant that the extra judicial confession would not have been given by the appellant/accused and the same could not contain truth cannot be sustained.

13. At this juncture, the learned counsel for the appellant/accused would cite a judgment of this court reported in 1995 2. L.W. (Crl) 513 in between RAJU AND 2 OTHERS vs. STATE REP. BY INSPECTOR. It would run as follows:
"... While so, it is evident that this confession is only a make belief thought of during the investigation with the assistance of an obliging Village Administrative Officer and it is unsafe to place any reliance on the same. Further, a Division Bench of this Court has pointed out in In re Lakshmanan (1971 M.L.J., Criminal 178)
"Under Rule 72 of the Criminal Rules of Practice, the "Village Magistrates are absolutely prohibited from reducing to writing any confession or statement whatever made by an accused person after the police investigation has begun." It was intended to prevent false extra judicial confessions being secured through the help of the village munsif after the commencement of the investigation. The extra-judicial confession itself is a weak evidence and its value becomes less when it is obtained by a person in the position of the village munsif after investigation of the case by the police has started. But on a careful examination of the relevant provisions relating to the matter, it is not possible to state it is illegal or in admissible in evidence, though the weight to be attached to the same may be a relevant question for consideration on the facts and circumstances of each case."
Relying upon the aforesaid judgment it was argued by the learned counsel for the appellant/accused that the extra judicial confession given to P.W.12 is not legally sustainable.

14. However it is brought to the notice of this court by the learned Additional Public Prosecutor that the said proposition of law followed by this court had been watered down by the judgment of Honb'le Apex court in (2006) 1 SCC (Cri) 470 in between SIVAKUMAR vs. STATE BY INSPECTOR OF POLICE. The relevant portion would run as follows:
"38. The Village Magistrates evidently, under the new Code of Criminal Procedure, are not empowered to record any confession or statement either in terms of Section 162 or Section 164 of the Code of Criminal Procedure.
39. For all intent and purport, therefore, Rule 72 of the Criminal Rules of Practice has become redundant and nugatory, logical corollary whereof would be that there does not exist any embargo for an accused person to make an extra-judicial confession before a Village Administrative Officer.
40. We do not, thus, see any reason as to why such an extra-judicial confession could not be made before a Village Administrative Officer, with a view to exclude the admissibility of the confession made before a person, he must be a police officer. A Village Administrative Officer does not answer the description. While carrying out his duty to inform the police or the Magistrate in terms of Section 40 of the Code, the Village Headman does not act as a public servant removable only by or with the sanction of the local government nor does he act in his capacity as Magistrate. (See Pregada Balanagu v. Krosuru Kotayya AIR 1937 Mad 578: 38 Cri LJ 950.
41. We, for the reasons stated hereinbefore,are of the opinion that the extra judicial confession by the appellant before the Village Administrative Officer was not inadmissible and, thus, could be relied upon.
Yet another judgment of Honb'le Apex court was relied upon by the prosecution as reported in 2009 (6) Scale 537 in between VELAYUDA PULAVAR vs. STATE BY SUB-INSPECTOR OF POLICE.
"... So far as plea relating to corroboration is concerned, if the court looks for such corroboration of a judicial confession or an extra judicial confession, same need not be in material particulars. It can be and will have to be only corroboration in general. Each an every piece of information mentioned in the extra-judicial confession need not be corroborated by independent evidence. It is well settled that conviction can be recorded solely on the basis of the extra judicial confession if it is found to be credible and worthy of acceptance."
On a careful understanding of the aforesaid dictum of Hon'ble Apex court they would lead us that if the extra judicial confession given to any person which is found to be credible and worthy of acceptance then the conviction can be based solely upon such extra judicial confession without any corroboration.

15. As far as this case is concerned the extra judicial confession is made by the accused/appellant before P.W.12 who is the V.A.O of the said village. Nothing was elicited from the evidence of P.W.12 to reject his evidence. Since the extra judicial confession given to P.W.12 are found to be trust worthy and credible both legally and factually  the argument advanced by the learned counsel for the appellant cannot be accepted. Similarly the further contention of the learned counsel for the appellant/accused that the evidence of P.W.12 deserves no confidence of the court, as it was recorded after three weeks after the commencement of investigation has no legs to stand.   Nextly regarding the evidence of P.W.10 the approver is concerned the confession given by the approver was proved through Ex.P.14 and the material objects 8 and 9 were recovered through his confession leading to recovery. It would also go to show that P.W.10 approver had also participated in commission of the crime along with other two accused. The finger print expert who was examined as P.W.25, had lifted the finger prints on the scene of occurrence in the drawer of steel table and had found tallied after comparison with the finger prints obtained from all the accused including the approver P.W.10. The finger print of the appellant/accused was also found tallied by him. Ex.P.38 report of the Finger print expert would show that the appellant/accused had also participated in the crime. This would further strengthen the evidence of P.W.10 approver who had also found to have participated in the crime of murder of Periyammal, house breaking as well as the attempt to commit robbery. All these circumstances would go to show that P.W.10 the approver had come forward to speak the truth. Therefore, the argument of the learned counsel for the appellant/accused that the approver P.W.10 had spoken false in his evidence in order to escape from his culpability of the crime cannot be accepted.
16. As regards the commission of offence by the appellant/accused the evidence adduced by P.W.10 and the finger print expert P.W.25 report in Ex.P.38 and the confession given by the appellant/accused before P.W.12 and the recovery of M.O.7 rod through confession made in Ex.P.10 are all pointing at the accused/appellant the co-accused Athi @ Arunkumar and the approver P.W.10 responsible to have participated in the crime of committing murder of Periyammal and had put the body on the backyard of the said house and had broke open the door of the house for the purpose of committing theft. All these links have been promptly connecting the chain of circumstantial evidence and we are of the opinion that the guilt of the appellant/accused has been clearly proved beyond all reasonable doubts.
17. In the aforesaid circumstances, we are of the opinion that the lower court had gone through the evidence and had come to a
M.CHOCKALINGAM,J.
     and
V.PERIYA KARUPPIAH,J.
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correct conclusion of recording the conviction against the accused as per the charges framed against him and therefore, we find no reason for deviating from the conviction and sentence passed by the lower court. Accordingly the appeal filed by the appellant/accused is found to have no merits and is liable to be dismissed.
     Accordingly the appeal is dismissed confirming the judgment of conviction and sentence passed by the lower court on finding the accused guilty.

         (M.C.,J.)   (V.P.K.,J.)
        03.12.2009
Index : Yes/No
Internet : Yes/No
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To
1. The  Additional Sessions Judge,
       Fast Track Court No.I, Erode

   2. Inspector of Police
       Chithode Police Station, Erode

3. The Public Prosecutor,
    High Court, Chennai.


Crl.A.No.572 of 2008